STATES OF JERSEY
r
CODE OF PRACTICE FOR SCRUTINY PANELS AND THE PUBLIC ACCOUNTS COMMITTEE (p.77/2007): SECOND amendmentS
Lodged au Greffe on 3rd July2007
by the Council of Ministers
STATES GREFFE
CODE OF PRACTICE FOR SCRUTINY PANELS AND THE PUBLIC
ACCOUNTS COMMITTEE (P.77/2007): SECOND AMENDMENTS
____________
At the end of
the proposition, after the word
“2007” insert the words –
“, except that –
(a) in paragraph 3.5[1]
after the words “will review the matter and” insert the words “, subject to the preservation of legal
professional privilege and the privilege against self-incrimination,”;
(b) in paragraph 9.10, after the words
“properly convened hearing” insert the
words “(see also paragraph 10.7)”;
(c) in
paragraph 9.20 –
(i) after
the words “within the Panel’s terms of reference” insert the words “as set out in paragraph 4.2 of this Code of
Practice”, and
(ii) after
the words “within the Panel’s terms of reference”, for the words “There is a presumption that material will be
released to the Panel Chairman, and if appropriate will be provided in
accordance with a signed confidentiality agreement.” substitute the words “The Minister will decide whether to release
reports, but there will be a general presumption that reports will be released
to the Panel Chairman, and this will be provided in accordance with a signed confidentiality
agreement.”;
(d) for
paragraph 9.21 substitute the following paragraph –
“9.21 If it has been agreed that a Part B report
from a Council of Ministers’ meeting will be provided, this will be promptly
forwarded following adequate consideration by the Council and the relevant
Minister.”;
(e) in
paragraph 9.22 delete the sentence beginning “There will be a presumption
that the Minister …” and after the words
“he/she will take this up with the Panel Chairman” insert the words “The Minister will then decide whether to release
the paper in accordance with the confidentiality agreement”;
(f) in
paragraph 9.23, delete the words “and the President, Chairmen’s Committee”;
(g) delete
paragraph 9.24;
(h) for
paragraphs 9.26 to 9.29 relating to legal advice substitute the following
paragraphs –
“9.26 For the
reasons that –
(i) the States Assembly is not a proper
forum for argument about which of two sets of competing legal advice is
correct; and
(ii) there will be a potentially significant
cost to the public purse if Scrutiny Panels engage external lawyers on a
regular basis,
it is
desirable, where possible, that Ministers, the Scrutiny Panels and the PAC seek
legal advice from the Law Officers’ Department rather than the private sector.
It will be the duty of the Law Officers to seek to ensure that, to the extent
that they are advising more than one party on the same set of facts, the advice
is given on a consistent basis and does not by any inconsistency cause
embarrassment to States members. It is understood that Ministers, Panels or PAC
are absolutely entitled to seek private sector advice however if they choose to
do so, or if the Law Officers advise that, for whatever reason, they are unable
to advise a Minister, a Panel or the PAC on a particular matter.
9.27 It is
essential that there is no inhibition on Ministers and their departments, who
will usually also be taking advice from the Law Officers, both from seeking
that advice, and, when it is sought, from giving the Law Officers all the
relevant facts. If such inhibitions do exist, there is the probability that
from time to time no advice or the wrong advice will be given, with
maladministration as a result. Protection of the confidentiality of
communications between the Law Officers and Ministers and their departments is
therefore essential.
9.28 It is
recognised by the States and the Law Officers that the process of seeking and
taking legal advice from the Law Officers is confidential. There are three primary
underlying reasons for this –
(i) to ensure that there is no damage done
to the public interest by the publication of legal advice given by the Law
Officers;
(ii) to ensure that there is no inhibition on
the part of Ministers, the Scrutiny Panels or the PAC in taking advice;
(iii) to ensure that there is no inhibition on
the part of the Law Officers or lawyers within their Department in giving full
and frank advice on all the matters which are raised with the Law Officers or
one of the Departmental lawyers for advice, or which the Law Officers or the
advising lawyer consider should reasonably be volunteered to the Minister, the
Panel or the PAC for consideration.
9.29 For
these reasons, the Protocol agreed between the Scrutiny Panels and the Law
Officers, which covers the taking and giving of legal advice, is as
follows –
(1) Neither the Scrutiny Panels (which
includes for this purpose their officials) nor the Law Officers will publish
without the consent of the other –
· The
fact that legal advice has been sought.
· The
facts which have been given to the Law Officers for the purposes of taking
advice.
· The
legal advice which has been given to the Panel (or its officials) on the facts
presented to the Law Officers.
(2) Nothing in paragraph (1) prevents a
Panel making a statement in a Report to the States as to what in its opinion
the law is, or as to what its understanding is of the legal basis of the policy
followed or decision taken. The Law Officers will be afforded the opportunity
to review Reports made in order to ensure confidentiality about legal advice is
maintained.
(3) In making a statement under paragraph
(2), Panels should be careful to ensure that no implication is given that their
statement has been endorsed by the Law Officers.
(4) Scrutiny Panel members recognise and
accept that Ministers and their officials will maintain their claim to legal
advice privilege, except in exceptional circumstances, if questioned by a Panel,
and will not seek to interfere with that privilege. Such exceptional
circumstances are likely to arise only where there is a coordinated Law
Officer, Ministerial and Scrutiny approach to the release of the advice, where
there would be no adverse impact on actual or possible legal proceedings in the
court, and where there would be no undesirable precedent set as a result.
(5) Scrutiny Panels and the Law Officers
recognise that, in exceptional cases, the public interest, which is both
different from and wider than the political interests of the Panels and the
professional interests of the Law Officers, may override the very strong public
interest factors set out in paragraphs 9.17 to 9.19 above, and make it
desirable that the legal advice given to Scrutiny Panels is published. In such
cases, the Panel and the Law Officers undertake to discuss how the public
interest can best be accommodated. If there is no agreement between them, the
views of the Privileges and Procedures Committee will be sought. If at the end
of those discussions, there remains a lack of consensus, the question of
publication or not will be a matter for the judgment of the individual Panel.
(6) The provision of legal advice to a
Scrutiny Panel must take reasonable account of the timetable in which a review
is being conducted. If pressure of workload on the Law Officers’ Department
prevents a prompt response to a request from a Scrutiny Panel for advice, the
Law Officers should notify the Panel Chairman as soon as possible so that other
arrangements can be made. It is further understood that the Law Officers will
endeavour to advise Scrutiny Panels in all cases unless there are exceptional
reasons, whether practical or theoretical why they feel unable to do so.
(7) The Law Officers have requested that
where a Scrutiny Panel seeks advice from them, the Panel ensures that where
reasonably possible it makes available to the Law Officers a detailed summary
of the facts and documents on which the advice is sought.
(8) Where a Scrutiny Panel takes legal
advice from the private sector, it is desirable that it should consider
disclosing that advice to the Law Officers in order that any potential
disagreement about what the law is can be identified and so that, in the event
of such disagreement, discussions where appropriate can take place between the
Panel and the Law Officers so as to minimise any difficulties for States
members as a result.”;
(i) in
paragraph 11.6 after the words “factual or descriptive passages.” insert the words “Where possible, this
will also include the Panel’s findings and recommendations. This will help to
ensure that the Panel has correctly interpreted the evidence and provides an
early opportunity for clarification”;
(j) in
paragraph 11.10 –
(i) after the words “under embargo”
insert the words “at least 10 working days prior to publication”,
(ii) after the words “This is” insert
the words “to allow for any inaccuracies to be identified and discussed
with the Panel and”,
(iii) after the words “report’s findings and recommendations.” delete the words “The period of advance
notice to be determined by the Chairman”;
(k) in
paragraph 11.17 after the words “on the implementation of” insert the words “the accepted”;
(l) after
section 13 insert a new section 14 as
follows –
“14. Compliance
Any alleged infringements of the “Code of
Practice for Scrutiny Panels and the Public Accounts Committee” must be
reported the Chairmen’s Committee, and the Chairmen’s Committee will determine
an appropriate course of action. Where the issue cannot be satisfactorily
resolved with the Chairmen’s Committee, the matter may be referred to the
Privileges and Procedures Committee.”.
COUNCIL OF MINISTERS
REPORT
The Council of Ministers wishes to make a number of
amendments to the Code of Practice for Scrutiny Panels and the Public Accounts
Committee. For clarity, for those paragraphs where there are significant
changes, the full text of each of those paragraphs, including the proposed
amendments, is attached as an appendix to this report.
Section 3 –
Powers of the PAC and Panels
(a) Section
3 of the draft Code relates to the powers of the Public Accounts Committee and
the Scrutiny Panels, and it sets out the proposed arrangements under which
Ministers and other Members of the States will be expected to cooperate with
the Panels. It is stated in paragraph 3.2 of the draft Code of Practice that
Members are not covered by the States of Jersey (Powers, Privileges and
Immunities) (Jersey) Regulations 2006 (“the Regulations”), but the Council of
Ministers would like to point out that the procedures set out in section 3
are not consistent with those in the Regulations.
Regulation
2 of the Regulations state that –
“These
Regulations shall not –
(i) confer any power to issue a summons
requiring the appearance of or the production of documents by a member of the
States; or
(ii) confer any privileges or immunity on a
member of the States.”
In
paragraph 3.5 of the draft Code of Practice it is stated that where there is a
dispute between a Scrutiny Panel and the member or Minister as to whether
evidence should be given or documents produced, ‘the Privileges and Procedures Committee will review the matter and
direct whether or not the Minister or member concerned should comply with the
request. If a Member fails to comply when directed by PPC to do so he or she
will be regarded as being in breach of the Code of Conduct and the appropriate
disciplinary process will be initiated’.
This
is some way from Regulations 8 and 17 of the Regulations. These two Regulations
provide an entitlement to the privilege against self-incrimination and to legal
professional privilege. Nothing in the draft Code of Practice replicates that
entitlement.
The
Council of Ministers considers that this is an important principle and that the
entitlement to those privileges, for all States members including Ministers,
should be maintained.
The
effect of the Council’s amendment would be to maintain this entitlement.
Section 9
Scrutiny Panels: Gathering Evidence
(b) For
clarification, the Council proposes inserting a reference in paragraph 9.10 to
the related paragraph in section 10 which also deals with the arrangements for
officers attending public Scrutiny hearings.
(c) – (g) Access to Council of Ministers
Part B background papers –
Paragraphs 9.17 to 9.24 set out the access that
Scrutiny will have to papers on the Council of Minister’s “B” agenda, rather
than the more general access to information set out in paragraphs 3.5 and 9.1
to9.14 of the Code of Practice.
When considering if and when papers should be made
available to Scrutiny, and what Scrutiny is allowed to do with those papers, a
number of points need to be considered –
(i) the Minister is legally accountable for
information under his/her control. It therefore follows that the Minister must
retain control over the distribution of confidential information. For this
reason, confidential information supplied to a particular Panel must remain
confidential to that Panel and must not be shared in a wider forum without the
permission of the Minister. The proposed amendments to paragraphs 9.20 to 9.23
seek to make it clear that, whilst there is a presumption that confidential
Part B papers will be supplied to Scrutiny on request in accordance with a
confidentiality agreement, the Minister must retain the right to refuse access
to confidential information in certain circumstances. If such circumstances
arise, the amendments provide for these to be explained to the Panel Chairman,
and if unresolved, a right of appeal to the Chief Minister. It must be
understood, however, that as the legal responsibility rests with the Minister
concerned, the role of the Chief Minister can only be to discuss and mediate;
(ii) Scrutiny Panels are set up to complement
particular ministerial responsibilities. It is recognised that policies will
frequently overlap the remits of particular Panels and as set out in (i) above,
confidential Part B papers will be provided to more than one Panel if
appropriate. It must be recognized, however, the considerable impact that
requests for information and papers relating to Part B papers which are not the
subject of a formal scrutiny review has on departments;
(iii) Part B papers usually relate to policy
under development and may not reflect the final position of the Council. Once
policy development is mature, the agreed papers are supplied to Scrutiny for
consideration and published, either as consultation documents or information
papers prior to presentation to the States for approval. Whilst the Council
accepts that it may be useful for Scrutiny to examine such papers in the
context of a formal Scrutiny review, the provision of immature policy
considerations may also be misleading when taken in isolation;
(iv) the Council proposes that paragraph 9.24
is deleted as the issue is already covered in paragraphs 9.1 to 9.16.
(h) Legal
Advice –
The
Chairmen’s Committee has proposed in paragraphs 9.26-9.29 that copies of legal
advice should be shared between the Executive and Scrutiny functions. The
Council of Ministers does not agree with this proposal, and it recommends that
the process of seeking and taking legal advice from the Law Officers Department
should be confidential. This would reflect general practice in other
jurisdictions, where it is accepted that the Executive should have access to
legal advice on a confidential basis.
There
are good reasons for this practice which the Council considers to be equally
relevant to both the Executive and Scrutiny functions. These have been set out
in the comments of the Attorney General on the draft Code of Practice and the
Council shares the view expressed by the Attorney General that there should be
no inhibition on the part of Ministers or departments both in seeking advice
and in giving all the relevant facts. Equally, there should be no inhibition on
the part of the Law Officers Department in the giving of full and frank advice.
The
proposal set out by the Chairmen’s Committee in paragraphs 9.26 to 9.29 would
represent a radical departure from the current arrangements, and in the
Council’s view this would be detrimental to good government. In this connection
the Council endorses the comments made by the Attorney General. The Council is
therefore proposing an alternative arrangement in which the Scrutiny function
would be able to seek advice from the Law Officers in the knowledge that this
advice would remain confidential. There is nothing in this arrangement that
would prevent a Scrutiny Panel from making a statement as to its understanding
of the legal position, and the same would apply of course to the Executive.
Section 11
Scrutiny Panels: Reports
(i) – (j) The Code of Practice provides for
Scrutiny Panels to circulate “relevant draft sections” of a scrutiny report to
the appropriate witness without the Panel’s own findings and recommendations
and allow (normally) 5 working days for a witness to comment on the factual
accuracy of their submission (paragraphs 11.6/7), and for the full report to be
released to the Minister in advance of publication “so that an informed comment
can be prepared” (paragraph 11.10). In practice, timescales between the
Minister receiving a copy of the report and publication have been very short in
most cases and there is little or no opportunity for the Minister to comment on
the conclusions and recommendations.
The
appropriate witnesses and, in particular, the appropriate Minister should have
an opportunity to review the findings and recommendations in good time prior to
publication because –
· without
sight of the findings and recommendations, it is impossible to assess whether
the Panel has interpreted the information correctly. This has led to a number
of Scrutiny reports including inaccurate or misleading information;
· it is
unreasonable to expect a Minister or officer to review what are often
substantial documents and prepare comments in so short a timescale.
The
proposed arrangements would not at all compromise or interfere in Scrutiny’s
ability to publish its findings, but it would ensure that final reports were
more accurate.
(k) Paragraph
11.7 relates to the implementation of Scrutiny recommendations. Ministers do
not have to accept the recommendations made in Scrutiny Reports. It is accepted
that Ministers should respond to Scrutiny reports in good time setting out any
reasons for rejecting a particular recommendation. It is then up to the
Scrutiny Panel whether it wishes to refer the matter to the States for
discussion.
Section 14:
Compliance
(l) The
Code of Practice is silent on compliance. Notwithstanding Standing Order 141
which states that “A scrutiny
panel, a sub-panel of a scrutiny panel and any member of a scrutiny panel
appointed to undertake any review shall comply
with any code of practice prepared by the chairmen’s committee and approved by the
States”, which
would result in any complaint being referred directly to the Privileges and
Procedures Committee under Standing Orders, the Council proposes that a section
be included in the Code of Practice which is similar to that included in the
Council of Ministers Code of Conduct. This would ensure that members of
Scrutiny are aware that they are required to comply with the Code of Practice
and what the mechanism is if there is non-compliance.
This amendment does not have any additional financial
or manpower implications.
APPENDIX
Full text of
paragraphs ‘as amended’ where there are complex proposed amendments to the text
Amendment (a)
3.5 The
Greffier will immediately refer the matter to the Privileges and Procedures
Committee which will review the matter and, subject to the preservation of
legal professional privilege and the privilege against self-incrimination,
direct whether or not the Minister or Member concerned should comply with the
request. If a Member fails to comply when directed by PPC to do so he or she
will be regarded as being in breach of the Code of Conduct and the appropriate
disciplinary process will be initiated.
Amendment (c)
9.20 Any
Panel Chairman may request a copy of a Part B report from a Minister whose
department falls within the Panel’s terms of reference as set out in
paragraph 4.2 of this Code of Practice. The Minister will decide whether to
release reports, but there will be a general presumption that reports will be
released to the Panel Chairman, and this will be provided in accordance with a
signed confidentiality agreement (see Appendix 1). If there are exceptional
circumstances surrounding the release of information, those circumstances will
be explained to the relevant Panel Chairman by the Minister. All Part B reports
will be treated as confidential until the Minister specifies otherwise, or
until the report is made public.
Amendment (e)
9.22 In the
event that another Scrutiny Panel wishes to be provided with a copy of the same
Part B report, as referred to in 9.20[2]
above, the Chairman of that Panel will need to submit a request to the relevant
Minister. If the Minister is in doubt of the relevance of the request, he/she
will take this up with the Panel Chairman. The Minister will then decide
whether to release the paper in accordance with the confidentiality agreement.
Any exceptional circumstances which might surround the release of information
will be explained to the Panel Chairman who requested the information.
Amendment (f)
9.23 In the
event of a disagreement about access to a Part B report, the matter will be
referred to the Chief Minister for discussion.
Amendment (i)
11.6 In
order to ensure that the evidence received is fairly and accurately reported,
the Panel will circulate relevant draft sections of the report to all witnesses
for comment in advance of finalising the report. Normally these draft sections
will be factual or descriptive passages. Where possible, this will also
include the Panel’s findings and recommendations. This will help to
ensure that the Panel has correctly interpreted the evidence and provides an
early opportunity for clarification. If recommendations are provided this
is done to provide the context of the report.
Amendment (j)
11.10 Copies
of the finalised report will be released in advance to the appropriate Minister
under embargo at least 10 working days prior to publication. This is to
allow for any inaccuracies to be identified and discussed with the Panel and
to enable the Minister to prepare an informed comment in response to the
report’s findings and recommendations.
Amendment (k)
11.17 The
Panels may request, at an appropriate interval, a progress report from the
Executive on the implementation of the accepted recommendations made in
the report or on key developments regarding the policy or issue in question.